The musings, opinions, thoughts, and complaints of a political minded Canadian citizen.

Wednesday, October 30, 2013

Throw Away The Key

As promised during our talking about the throne speech, though slightly detoured due to Senate revelations, I think it's time we sit down and talk a bit about prisons.

Prisons are arguably one of those 'flashpoint' topics in politics; the sort of issue where you find extremes on both sides, and very little room for compromise in the middle. People typically fall into two groups, represented by an old metaphor, the carrot and the stick.

The carrot group believe in rehabilitation. Prison exists as not only as a punishment, but also as a means of attempting to correct the offender. It is not enough to simply lock them away for their sentence; rather, we must offer the ability for betterment.

The stick group takes the opposite extreme. Prison is for punishment and punishment alone. These people violated the rights of another individual, and as such, they're forfeited their own rights in the process. We have nothing to give them, nor should they expect anything, other than punishment for their offense.

These tend to be the two 'majority' viewpoints when it comes to the discussion of prisons. As mentioned, there also seems to be little to no middle ground when it comes to this issue. I remember an all candidates' debate I attended during the 2006 Election campaign. The Liberal candidate drew a good laugh and response from the crowd when he responded, "No one says we can't let them shower, but no one says we have to give them warm water."

It's one of two memories from that campaign that has always stuck with me.

And it's also a reason why we need to be able to talk about the state of prisons in Canada, and the future of them.

However, before we get to that, there's a few key issues and definitions we need to settle upon first. So, let's do a small crash course on history before moving forward. My apologies, if my legal history is a little spotty, but I will do my best to make sure I don't make any glaring errors. As always, corrections are welcomed.

We'll start with the idea of codified law. The idea that a list of offenses were drafted, with punishments set for offenses continues to form the existence of modern law. The most famous of these sets of ideas is the Code of Hammurabi (LINK), which dates back to around 1772 BC. While not the oldest set of codified law, it remains one of the oldest that we have a complete set of. And as joked about in the Daily Show's book, America, "redefined the social contract from 'I will kill you' to 'I will kill you if you do one of the following 282 things."

Effectively, it established the limits and scope of law. It also helped to establish the presumption of innocence before guilt; as it applied means to provide evidence for both the accused and accuser. And while it may be extreme in punishment, and many of the laws no longer apply to modern life, it is indeed a major cornerstone in the foundation of modern law.

Hammurabi's Code, also, can be argued to be the source of the idea of punitive law. Punishments according to the code were often harsh, often ranging to death, and based on the idea of the victim receiving a means of retaliation against the accused.

For example, one law states " If a builder build a house for some one, and does not construct it
properly, and the house which he built fall in and kill its owner, then
that builder shall be put to death." Imagine a better business bureau having to undertake that kind of investigation against a contractor.

Effectively, Hammurabi's Code established the idea of retaliation over 'justice'. For example, another of Hammurabi's laws states: "If a man put out the eye of another man, his eye shall be put out." This speaks volumes to the level of recourse the victim had under Babylonian law. It also stresses that 'justice' was equal to direct punishment, rather than an infringement upon certain rights.

Hammurabi's Code promised, as the Daily Show joked, that if you made a violation you would be harshly punished.

Ancient Greek philosophers, such as Plato with his work "Laws", began to challenge some of the finality of vengeance in justice. Detainment, as a legal punishment, took quite awhile to catch on. For the most part, detainment was used as a means of punishing offenders who could not afford to pay fines; or in most cases, used as a means of securing hard labour from offenders. Effectively, for the longest time, detainment was not seen as a full means of punishment. In fact, detainment was often used before a more permanent sentence, such as execution, was passed on the offender.

It would be until the Middle Ages that detainment became seen as a tangible idea for punishment. In Europe, with the construction of castles and fortress and other 'strong' buildings, it became possible to place a person under a state of detention for a long period of time. No doubt, many of you will be aware of the history of the Tower of London. While the name often invokes a sense of dread, people often forget that the Tower served as one of the most secure buildings in London.

It was not uncommon for the Monarch, or the heir, to spend time in Tower as a guest for an extended period of time. This remains the case for 'noble' offenders throughout the Middle Ages. Being the 'prisoner' of another noble was more like an extended vacation than it was confinement; at least, if you were of noble birth and the charge against you wasn't too extreme.

Suddenly, we start to see what the notion of "courtesy" had on the notion of punitive law. It becomes incomprehensible to inflict the harshest punishment imaginable on a fellow member of the gentrified classes, and as such, we must extend all courtesy towards them during their time in my remand. Granted, it would take quite a bit of time until this level of courtesy was extended to the lower classes, but it's a starting point to see where change began to develop.

Not to say that all nobles were immediately excused of their crimes with a lavish detainment. Depending on the mood of the Monarch, the harshest punishment was still an option, though considerations other than guilt often determined the course of action. But, as stated, it was a start. It was move away from the demand for vengeance as the qualifier of appropriate punishment.

Now that we've sort of fleshed out the idea of punitive punishment, and where it came from, we need to look back on why these punishments exist in the first place, and whether our punishments are justified or not. That means taking a closer look at the Social Contract.

The Stanford Philosophical Encyclopedia is a great resource for philosophical ideals, and I highly recommend checking it out, as we will be relying on it quite a bit for this next bit. (LINK)

The modern idea of the Social Contract is usually traced by to Thomas Hobbes. Hobbes argues that without law, man would exist in a state of nature that is marked by excessive violence. This is because everyone would be free to do whatever they want, in any amount that they want. For example, A could kill B, simply because A wanted to.

As such, free man subject themselves to the will of a civil society (a monarch, a ruling body/parliament, etc) and surrender 'rights' based on the idea of achieving protections from a state of nature. Later philosophers, like John Locke and Jean-Jacques Rousseau placed greater emphasis on understanding that securing rights for ourselves means guaranteeing rights for other people.

Effectively, however, it comes down to the general idea that citizens of a state will surrender 'absolute freedom' in order to secure basic rights. So, while A has the capacity to murder B, A will refrain from doing so due to the social contract that protects A's life from C. Or put more simply, a person agrees not to kill someone else in the hopes of ensuring that the state will protect their life from someone else as well.

As such, as part of the surrendering of absolute freedom, we expect the state that we've empowered to have the means to punish those who step outside the bounds of the Social Contract. After all, if the state is powerless to enforce the contract, then the individual is surrendering rights without receiving anything in return.

And this is where we start to reach the problem of modern capital punishment, and one of the issues where the 'carrot' VS 'stick' group tend to argue with one another.

The violation of the social contract calls for the state to take action against the violator. It is an affront to the entire society if a person who violates the social contract, by refusing to curtail their own 'absolute freedom' (like the rest of us), is allowed to enact this freedom without some sort of rebuking.

The problem is now found in what happens to the rights of the violator under the Social Contract? The 'stick' group would argue that by violating the contract, they have nullified their own protections or entitlement to the rights enjoyed by the law abiding citizens of the society.

The 'carrot' group would argue that although the person has violated the contract, the social agreement between the entire society and the state, still applies to a person's basic rights as defined by the state.

Let's put that into simpler terms.

The 'stick' group argues that a violation of the social contract invalidates all rights afford to a person by that contract. The 'carrot' group argues that a person who has violated the social contract still has basic rights.

This is the foundation of perhaps the biggest gap between these two groups. After all, the 'stick' group sees the offender as now existing outside of the social contract. As such, we have no commitments to honour with them. Whereas the 'carrot' group, would say that regardless of a violation of the social contract, the fact that they remain a citizen of the state provides them the same basic protections afford to non-offenders.

This mindset creates a very different reality when you try to measure what prison is supposed to accomplish for an offender.

Like Hammurabi, the 'stick' group would advocate for a harsh justice that ensures the victims of the offender receive a form of retaliation for the offense. This could be a simple striping away of all their rights; or life imprisonment, or in some countries, the death penalty.

Like Plato, the 'carrot' group would see the fault of the offense as a failing of the person; and to some degree, a failure of the society. As such, an emphasis should be placed upon rehabilitation and fixing the fault inherent in the individual.

Though, in fair disclosure, Plato did argue for the death penalty for certain individuals who were deemed beyond redemption and saving.

And this brings us to the question of how we should be using prisons in today's society. Since the Middle Ages, our legal system has been evolving. We've moved away from the cold brutality of Hammurabi, and instead have tried focus on the more noble goal of rehabilitation laid out by Plato and other philosophers.

The problem, however, is that the people who agreed with Hammurabi's extremism in justice have not disappeared with the practice. In fact, political parties now base entire sections of their platforms around the idea of strengthening the punishment of prisons. As noted, the Throne Speech included a call for the government to make a life sentence exactly that, a lifetime detainment.

We're going to talk about the practicality of such an idea in a moment, but for now, we're going to stick with the philosophical view on the issue.

Firstly, we need to talk about whether stripping an individual of their rights for a violation of the social contract is indeed a punishment we should be enacting.

In 1948, the UN adopted the Universal Declaration of Human Rights. It contains several Articles, establishing rights, that we will be talking about:

"All human beings are born free and equal in dignity and rights.They are
endowed with reason and conscience and should act towards one another
in a spirit of brotherhood."

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

"Everyone has the right to recognition everywhere as a person before the law."

"All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection
against any discrimination in violation of this Declaration and
against any incitement to such discrimination."

Effectively, this establishes the fundamental human rights of all people; even those who have violated the social contract. People who favour the 'stick' approach in establishing the behaviour of prisons, are indeed advocating 'cruel, inhuman or degrading treatment or punishment.' I refer you back to my 'no one says they need hot water' comment that I opened the post with.

Prisons exist to take away one key component from a person's rights: their right to liberty. After all, it was their adherence to absolute freedom that led to them being imprisoned. They refused to curtail their freedoms, as society expects, and as such have placed in remand where the greatest freedom of all has already been taken from them.

This lack of freedom just doesn't extend to physical mobility, but to the very aspects of control one's life in general. After all, prisoners are told when to wake up; when to eat; when to go to sleep; and whether or not they're allowed to step out into the 'yard'. So, prison exists to crush and curtail absolute freedom.

For the 'carrot' group, this seems to be punishment enough. For the 'stick' group, it barely scratches the surface. It also calls to mind the old familiar chant, 'don't do the crime, if you don't want to do the time'.

But that in itself exposes the truth about the punishment of prison, doesn't it? The time. The punishment is the time. It is the inability to control one's life, to dictate your own actions and be master of your own decisions, for a set amount of time. After all, what greater punishment could there be than to deprive someone of the ability to make their own decisions for set amount of time?

However, there are arguments for the 'stick' side where they begin to harken back to noble courtesy. For many people who favour stronger prison punishments, they cite the idea that prisons have become an almost holiday for the prisoners who reside within. It seems to conjure up images where prisoners have a bed, television, computer, and individual toilet in their cell.

Though, this is often not the case.

In Canada, prisoners make a wage for the work done while in prison. In fact, prisoners are currently 'on strike' over a pay reduction in the face of an increased cost to essential items, like shampoo or deodorant. (LINK) Furthermore, according to Corrections Canada, prisoners also incur costs while under incarceration. For example, an inmate will have pay deducted from their work to go towards food and accommodation. (LINK)

Inmate also have to purchase items from canteens, based on availability determined by the regional 'allowed' list. (LINK) I think this is worth mentioning as many people seem to be under the idea that prisoners have 'everything provided' for them. Quite honestly, this is not the case. Inmates are paid a stipend for their work, and can use this to purchase items that they may need.

If you look at the appendix in the last link, this includes items like razors, nail clippers, toothpaste, toothbrush, tampons, etc. Essentially, items that a person WILL need at some point and time. This items are not simply provided to inmates, they have to purchase them. And that money comes either from the work that they've done while at the prison, or from friends/family who have provided funds for their use to the prison.

The same goes for television sets and computers. 'Stick' proponents make it sound like Corrections Canada provides a TV and computer to every single inmate; but this is simply not the case. Once again, access to these types of electronic devices comes from friends/family from outside the prison. They also must conform to the rules laid down by the prison regarding these devices. (LINK)

So, while 'stick' people might want you to imagine a prisoner with a 50'' flat screen watching the latest blu-ray release; in reality, this cannot be the case due to the restrictions placed on both television sizes, and the types of media allowed within the prison.

The important thing to remember is that Corrections Canada does not provide these items; but prisoners who have friends/family on the outside are able to provide items that meet the requirements put down by the prison. As such, the prison allows certain luxury items to exist within the prison; but they by no means provide it for all prisoners.

The same goes for the cable packages is use on these television sets. Payment comes from the prisoners, not from Corrections Canada. This was brought up when Mark Twitchell, who based his crime off the Showtime series Dexter, was reported to be enjoy the series while in prison as part of his cable package. (LINK)

Keep in mind, however, that the CSC has final say over 'approved' cable packages. And channels that rebroadcast Dexter, like Bravo, ofter are included in packages that contain less objectionable channels like A&E or TLC. It's more a fault of predicting programming than directly providing access to questionable content for an inmate.

'Stick' proponents would have us completely ban these items; not just from individual cells, but from the prison population entirely. Or as Vic Towes might have said, "To hell with pizza parties!"

Which brings us to the question of whether or not televisions or computers should be banned from prisons. In Canada, we already ban internet access by inmates. So, even if an inmate has a computer they do not have the capacity to take it online. Some will falsely argue that the banning of the internet is proof that they should ban television access as well.

However, this is a false argument. Access to the internet poses a direct means of communications with other people outside of the prison, and even access to the means to commit crimes while in custody. Whereas television does not provide this medium. As such, it is logical to push for a ban (or limited use) internet for inmates due to the inherent risk of another crime being committed.

This doesn't come down to an argument about 'comfort' or 'right to access'. The internet is far and away and much more 'wild beast' than simple television access.

The Ontario NDP, a few years ago at this point, commented on access to 'premium cable packages' in prisons throughout the province. While the PCs were incredulous about prisoners getting access to these packages in the first place, the NDP presented an argument that made far more sense: That televisions were being used to 'babysit' prisoners in the way they were used to babysit children throughout the country. (LINK)

And perhaps they are quite right about that. While television might been seen as a comfort that prisoners aren't entitled to; others might see it as another means of keeping prisoners docile while under detainment. After all, an occupied prisoner who is able to watch their favourite television program is likely far more docile than an unoccupied prisoner who has hours upon hours to sit and stare at a wall.

In this way, perversely, there is an argument to be made for creature comforts as a means of ensuring peace within the facility. An occupied prisoner is a prisoner that is not a risk to staff or other inmates. Or quite simply, 'idle hands are the devil's playthings.'

It's an interesting train of thought, and as much as I'd love to continue exploring it, I think we need to get back onto the topic of prisons and punishment; not just the role of television within prisons.

Which does indeed bring us to the often forgotten people in prisons: The guards and administration. In addition to the prisoners, there must be the people who are in charge of watching them. And with regards to their punishment, scheduling their days.

In addition to considering the treatment of the inmates, we must also consider the treatment of the people who work in these facilities. An argument against the 'stick' mentality, is two-fold in that increased punitive conditions in a prison would pose a risk to the safety of the staff. After all, prisoners who are being denied human rights, or being mistreated, would be more likely to strike out at authority figures.

Secondly, we do indeed need to bring up the Stanford Prison Experiment.

Much like the Milgram Experiment, where people administered electrical shocks to people under orders from a single authority figure, the Stanford Prison Experiment found that 'guards' were willing to enact extreme authoritarian measures against 'prisoners'. The general consensus is that the 'guards' were willing to use psychological torture methods, and extreme measures against 'prisoners', due to the complacency of the professor leading the experiment to allow such methods to be used.

Effectively, what you can take away from this, is that when you establish a punitive system where all rights are disregarded and 'guards' have any means of punishment at their disposal, the nature response seems to be to immediately administer the maximum amount of authority, if not more. For example, the experiment had a solitary cell where prisoners were to be kept to a maximum of one hour. A 'troublemaker' prisoner was held in the solitary cell for three hours; well past the one hour maximum.

If you dehumanize prisoners, you are given implicit consent for them to be treated as less than human. And giving 'guards' a blank cheque with use of authority, and no consideration to human rights, makes the guards worse than the prisoners they are administering.

You cannot deny a prisoner basic human rights without dehumanizing them. And once you do that, you are allowing anything to happen to them while they are detained.

"Stick' people should be nodding in agreement, thinking that this is exactly what should happen to prisoners. However, this is a short sighted approach to the problem.

After all, there are numerous prisoners who are not life long inmates. People who have committed crimes that will be out of prison in four to five years; as opposed to those serving sentences to a minimum of twenty-five years.

And this is where we start to see the problem of the 'stick' approach.

These are people who will be reintroduced to the community. And the purpose of prison is two-fold: one, firstly deprive them of personal liberty as punishment for their crime. Two, provide the means to correct the behaviour to prevent recidivism.

If we fail to rehabilitate a prisoner, they will end up back in prison. For example, in 2003, the recidivism rate in Canada was between 41 - 44% for prisoners within their first year of being released. (LINK) It's now that we also have to consider policies that have a direct impact on recidivism rates.

The Harper Government has been very fond of mandatory minimums for certain offenses; which is odd, given that many nations are now in favour of removing mandatory minimums. The problem with this is that a first time offender is treated the same as repeat offender; there is no wiggle room, a judge must prescribe the minimum sentence as dictated by the federal government.

The risk here is that you take a first time young offender, and risk turning them into a lifelong criminal. After all, you are incarcerating them with serious, higher risk offenders. You are exposing them, in many cases, to a gang lifestyle; by which, an offender will join a prison gang and then continue to exist within the gang structure upon release.

Instead of rehabilitating, you have instead created a new repeat offender.

This calls for the need to ensure that first time offenders are given options outside of incarceration, depending on the nature of the crime, to increase the odds of successful rehabilitation and avoiding recidivism.

This also speaks to the need to ensure prisoners exist in an environment conductive to rehabilitation. John Hutton, of the John Howard Society, makes a point that when you pay prisoners a fair wage that they can actually save and use upon release, you increase the chances of successful rehabilitation. (LINK)

If you send a prisoner out in the world, with only $100 to their name after a four year prison term, they are not going to have that $100 for very long. Furthermore, job prospects for a person who has not only been charged with a crime but that has served a prison sentence, aren't the greatest. There is still a stigma attached to those released from prison that sees many potential employers see them as a liability, and not worth the risk in hiring.

So, you're creating an underclass that has little to no money to their name; might have established ties to criminal organizations while in prison; and who cannot find a legitimate job to provide for themselves. These are the same conditions that likely drove them to become an offender in the first place, and now you've recreated it for them.

All the rehabilitation in the world will fail if a prisoner leaves prison and their only prospects exist within committing another offense.

And this is where the 'stick' view fails so spectacularly. Punishment sounds fine, after all a person shouldn't expect a complete cakewalk if they've violated the social contract; but we must ensure that our punishment doesn't in turn pigeonhole the offender permanently into a life of crime.

If we have a responsibility to punish someone who has violated the social contract, we also have a responsibility to ensure that they are released in a manner that encourages them not to reoffend.